I don’t know where to begin here. Right off the bat, unless I missed an important con-law lesson somewhere along the line, there is no such thing as a “First Amendment exception” to using national parks. You don’t get special access to public property because you want to make a political point. The whole idea of a “First Amendment exception” seems to have derived from the National Park Service’s policy on “First Amendment activities,” which they pointed to after they got in hot water for shutting vets out of the World War II Memorial. That policy, though, only says that if you’re at a park to protest or have a religious ceremony or do something else protected by the First Amendment, you might be forced to hold it in a particular area of the park set aside for things like that, not anywhere you like. Which, of course, has nothing to do with elderly veterans wanting to visit a memorial to pay their respects. The NPS simply needed a half-assed excuse to let them in so that they wouldn’t get any more bad press, so they decided to pretend that the vets were engaged in “First Amendment activities.” How that turned into a “First Amendment exception,” I have no idea. And how you’d go about enforcing a “First Amendment exception,” I have no idea. If I’m on vacation in D.C. during the shutdown and want to see the Lincoln Memorial, does the ranger have to wave me through if I lie to him and claim that I’m there to protest? Will he watch me when I’m inside the memorial to make sure that I do protest? Will I get arrested if I don’t? Dude?
But never mind that. How on earth could the First Amendment create an “exception” that allows access to only some shuttered national parks but not others? I have a right to protest on the National Mall but not to protest in, say, Yellowstone because the Mall is super-historic ‘n stuff and Yellowstone isn’t? Hello?
Rangers [in Washington D.C.] told visitors Wednesday that they could not deny entry to anyone who wanted to exercise First Amendment rights, and could not interrogate visitors, which effectively means the monument is open to those aware of the loophole.
“The First Amendment trumps all,” a Park Service ranger told visitors…
Michael Litterst, a National Park Service spokesman, said the First Amendment exception applies only to several Washington and Philadelphia parks related to the government and its history, “due to these parks’ long history of hosting First Amendment events, their expansive outdoor grounds, and their location in major metropolitan areas.”
“You could not host a First Amendment rally at Chaco Culture, Grand Canyon, Manassas or any one of the 395 other parks where such activities are prohibited during the shutdown. They can be held only at the National Mall and Memorial Parks, the areas of the White House administered by the NPS, and Independence National Historical Park,” he said.
Show of hands, legal eagles out there: Who’s heard of this policy before, where the First Amendment trumps restricted access because of one public space’s cultural pedigree and doesn’t trump the same restrictions if another space lacks that pedigree? I e-mailed Ace’s co-blogger, Gabe Malor, who’s a lawyer in D.C. to check my work and he says he’s never heard of such a thing either. If anything, says Gabe, the NPS’s policy would be unconstitutional under the First Amendment because it’s not “content neutral”: They’re allowing people into the Mall to hold immigration rallies because that’s political speech but people whose speech is non-political and who aren’t there to make a point would, presumably, be barred. As best as I can tell, the NPS seems to be treating the entire national park system as essentially one big park, with “First Amendment activities” restricted to the parts of “the park” that are in D.C. and Philly. If they can do that, then presumably the feds can decide that all federal land spread throughout the country is essentially just one big plot of land, and that henceforth they’re going to dedicate a few acres in, say, Kansas as the designated “First Amendment activities” zone for the entire country. If you’re in New York, Alabama, Wyoming, or California and you want to protest on federal land, head to the airport and buy your ticket to Topeka.
All of which is to say, this policy is B.S. but it’s B.S. that likely sounds legalistic and convincing to the 99 percent of the public that’s never studied the First Amendment. “While the shutdown is on, you only get to access historic spaces and only then if you’re engaged in a ‘First Amendment activity.'” That … seems like it’s been reasoned out, kinda sorta, so that must indeed be what American law says the policy is. Nonsense; sue their asses. Or better yet, don’t and just continue to ignore the rangers when you want to enjoy a “closed” park instead.